MONASH UNIVERSITY Applicant and SHEILA SAVAGE First Respondent and PROGRAMMED MAINTENANCE SERVICES LTD Second Respondent
[2018] VSCA 156
•19 June 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0011
BETWEEN
| MONASH UNIVERSITY | Applicant |
| and | |
| SHEILA SAVAGE | First Respondent |
| and | |
| PROGRAMMED MAINTENANCE SERVICES LTD | Second Respondent |
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| JUDGES: | OSBORN, PRIEST and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 May 2018 |
| DATE OF JUDGMENT: | 19 June 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 156 First Revision: 19 June 2018 |
| JUDGMENT APPEALED FROM: | Savage v Monash University [20117] VCC 1774; Savage v Monash University (Third Party Proceeding) [2017] VCC 1886 |
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PERSONAL INJURY – Application for leave to appeal – Torts – Occupier’s liability – Employee rolled ankle in water filled depression in pedestrian crossover at work – Whether trial judge erred in assessment of what it was prospectively reasonable for the occupier to do in providing and maintaining crossover – Whether trial judge failed to have adequate regard to the extent and nature of contractual obligations of the maintenance contractor in assessing whether it had taken reasonable care in maintaining the crossover – Leave refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J P Brett QC with Mr M J Hooper | HWL Ebsworth Lawyers |
| For the First Respondent | Mr J Gorton QC with Mr M Garnham | Slater & Gordon Ltd |
| For the Second Respondent | Mr I D McDonald | Norton Rose Fullbright Australia |
OSBORN JA:
On the morning of 18 August 2010, the first respondent, Sheila Savage, suffered an injury, when she rolled her ankle, as she walked from a car park at the Clayton campus of the applicant (‘Monash’) to the building in which she was employed as a supervisor of security by a security contractor (‘the incident’).
Ms Savage subsequently made a claim in the County Court for damages for personal injuries, against Monash as the occupier of the premises in which she was injured, alleging that Monash failed to take reasonable care for her safety.
Monash denied liability to Ms Savage and under cover of that denial instituted third party proceedings against the second respondent, Program Maintenance Services Limited (‘PMS’), alleging that PMS had failed to take reasonable care in the performance of maintenance with respect to the area in which Ms Savage suffered injury.
This area comprised a heavily trafficked pedestrian crossing over a median strip within a sealed divided road (‘the crossover’). It was surfaced with what are known as Dromana toppings, a pathway material commonly used in the broader Melbourne metropolitan area and constituted by crushed granite, comprising irregular fragments of stone and fines.
At the time Ms Savage was injured, the crossover contained a series of puddles within depressions. Ms Savage stepped into one of the puddles wearing work boots and rolled her ankle on the uneven surface forming its base.
The claim proceeded to trial before his Honour Judge Saccardo. A central contention of Monash at trial, was that insofar as it owed a duty of care to Ms Savage that duty did not extend to removing or preventing hazards of the type of which she complained.
On 1 December 2017, the trial judge delivered judgment, finding for Ms Savage on liability and against Monash on the third party claim.
There was no dispute that the injury which Ms Savage had suffered had resulted in very serious consequences for her and his Honour assessed damages in the sum of $275,000 for pain and suffering.
Monash now seeks leave to appeal the trial judge’s decision on a series of grounds directed first to the basis of his Honour’s decision with respect to the claim by Ms Savage, and secondly, to the basis of his Honour’s decision with respect to the third party claim.
It will be necessary to resolve each of the specific criticisms raised by the proposed grounds of appeal, but the central thrust of the case advanced on behalf of Monash was that:
(1) As against Monash, his Honour erred in his assessment of what it was prospectively reasonable for the occupier to do in providing and maintaining the crossover; and
(2) As against PMS, his Honour failed to have adequate regard to the extent and nature of the contractual obligations of PMS in assessing whether it had taken reasonable care in maintaining the crossover.
For the reasons set out below, I would reject each of these central contentions together with the further detailed proposed grounds of appeal.
Insofar as the central contention with respect to Monash is concerned, the relevant danger constituted by the uneven surface which caused Ms Savage to roll her ankle and suffer injury, had the following characteristics:
(3) It was located within a heavily trafficked pedestrian pathway at a major activity centre in a position traversed by approximately 5,000 – 6,000 pedestrians per day;
(4) The danger was not a fixed hazard but arose from the use of a crushed rock surface which was susceptible to becoming worn and differentially displaced by pedestrian traffic;
(5) The danger arose out of the recurrent creation of depressions or potholes within the crushed rock surface;
(6) The depressions were susceptible to the creation of puddles when exposed to rainfall;
(7) The puddles concealed the base of the depression within which they were contained, and in particular, potentially concealed any unevenness in that surface;
(8) Puddling had been known to occur in depressions on the crossover on a number of prior occasions;
(9) Deficiencies in the surface had caused a number of prior tripping or falling incidents at the crossover;
(10) In the present instance, the muddy water within the puddle concealed the unevenness upon which the applicant rolled her ankle;
(11) The crossover was readily and cost effectively capable of being covered with a durable water proof and even surface;
(12) Following the incident in which Ms Savage was injured, the crossover was in fact sealed with concrete for a cost of $2,575.
In consequence of the above matters, the hazard which Ms Savage encountered was one which had the following characteristics:
(13) The hazard was occasional in the sense that it was not normally encountered in the course of daily usage of the crossover, but only when the combination of the surface utilised, the pedestrian traffic passing over it, the last time of maintenance and the occurrence of rainfall produced conditions of the type Ms Savage encountered;
(14) It was not obvious but was concealed in that the muddy water within the puddle concealed the uneven surface on which Ms Savage rolled her ankle;
(15) It was of a kind which Monash knew or ought to have known might occur having regard to the type of surface utilised, the maintenance regime adopted, the high level of pedestrian traffic, a history of the occasional production of depressions, potholes and puddles within the crossover surface and a further history of tripping and falling incidents upon it;
(16) It was a hazard which would result in large numbers of pedestrians being exposed to the potential risk of injury; and
(17) It was of a kind readily prevented by a sealing of the crossover at low cost.
In all the circumstances the duty of care owed by Monash to Ms Savage extended to prevention of hazards of the type which caused her to be injured.
Insofar as the claim with respect to the third party is concerned the evidence did not establish that PMS had failed to take reasonable steps to perform its contractual obligations to maintain the surface of the crossover in a safe and level condition.
Governing principles
Section 14B of the Wrongs Act 1958 provides as follows:
14B Liability of occupiers
(1)The provisions of this Part apply in place of the rules of the common law which before the commencement of the Occupiers’ Liability Act 1983 determined the standard of care that an occupier was required to show towards persons entering on his premises in respect of dangers to them.
(2)Except as is provided by subsection (1) the rules of common law are not affected by this Part with respect to the liability of occupiers to persons entering on their premises.
(3)An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.
(4)Without restricting the generality of subsection (3), in determining whether the duty of care under subsection (3) has been discharged consideration shall be given to—
(a)the gravity and likelihood of the probable injury;
(b)the circumstances of the entry onto the premises;
(c)the nature of the premises;
(d)the knowledge which the occupier has or ought to have of the likelihood of persons or property being on the premises;
(e)the age of the person entering the premises;
(f)the ability of the person entering the premises to appreciate the danger;
(fa)whether the person entering the premises is intoxicated by alcohol or drugs voluntarily consumed and the level of intoxication;
(fb)whether the person entering the premises is engaged in an illegal activity;
(g)the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
(5)Nothing in this section affects any obligation to which an occupier of premises is subject by reason of any other Act or any statutory rule or any contract.
The notion of reasonableness in all the circumstances of the case reflects common law principles as to the scope of the relevant duty of care. In Romeo v Conservation Commission (NT)[1] Hayne J observed, in the context of a claim for damages for personal injury arising when the plaintiff fell over a cliff within a nature reserve managed by the defendant:
What is reasonable must be judged in the light of all the circumstances. Usually the gravity of the injury that might be sustained, the likelihood of such an injury occurring and the difficulty and cost of averting the danger will loom large in that consideration. But it is not only those factors that may bear upon the question. In the case of a public authority which manages public lands, it may or may not be able to control entry on the land in the same way that a private owner may; it may have responsibility for an area of wilderness far removed from the nearest town or village or an area of carefully manicured park in the middle of a capital city; it may positively encourage, or at least know of, use of the land only by the fit and adventurous or by those of all ages and conditions. All of these matters may bear upon what the reasonable response of the authority may be to the fact that injury is reasonably foreseeable. Similarly, it may be necessary, in a particular case, to consider whether the danger was hidden or obvious, or to consider whether it could be avoided by the exercise of the degree of care ordinarily exercised by a member of the public, or to consider whether the danger is one created by the action of the authority or is naturally occurring. But all of these matters (and I am not to be taken as giving some exhaustive list) are no more than particular factors which may go towards judging what reasonable care on the part of a particular defendant required. In the end, that question, what is reasonable, is a question of fact to be judged in all the circumstances of the case.[2]
[1](1998) 192 CLR 431.
[2]Ibid 488–9 [157] (Hayne J) (emphases in original) (citation omitted).
At trial, Monash addressed submissions to the judge by reference to the decision of the High Court in Neindorf v Junkovic[3] and the judgments of the majority in that case usefully articulate the fundamental propositions upon which the applicant seeks to rely.[4]
[3](2005) 80 ALJR 341.
[4]Gleeson CJ relevantly agreeing with the judgments of Hayne, Callinan and Heydon JJ.
Neindorf concerned a claim by a plaintiff who attended a garage sale at the defendant’s house and tripped over an uneven surface in a concrete driveway.
The Wrongs Act 1976 (SA) contained relevantly analogous provisions to those of s 14B of the Victorian Wrongs Act 1958.
The majority of the Court held that the differential in the surface level of the concrete driveway which caused the plaintiff to trip, constituted a hazard of a type which was common and obvious and which would involve unreasonable cost to rectify in the context of a private house. It was not reasonable for the occupier to be required to take measures to remove it.
Hayne J said:
When the matter is analysed, as it must be, by reference to the applicable statutory provisions, it is readily apparent that it raises no point of principle. It raises no point of principle about developments (recent or historical) in the law of negligence; it raises no point of principle about other aspects of the law. … That is because the decision turns on the assessment of what would have been reasonable and practicable for the occupier to do.
This inquiry about what would have been reasonable and practicable is not to be undertaken in hindsight. Nor is it to be confined to what could have been done to eliminate, reduce or warn against the danger. Asking what could have been done will reveal what was practicable. It is necessary to ask also: would it have been reasonable for the occupier to take those measures?
In the present case, the relevant danger was presented by the uneven surface of the appellant’s driveway. Neither the fact that the driveway paving was uneven nor the degree of unevenness (a difference of about 12 mm between two sections of the concrete) is or was at all uncommon in the driveways of suburban housing. Would it have been reasonable for the occupier to eliminate or reduce the risk of tripping or stumbling on or over the unevenness, or to warn all entrants to watch their step?
It may be that some means of reducing the danger could readily have been found. It was suggested that to paint a stripe along the lip of the concrete or to cover it over with a piece of carpet would have done so. Perhaps the danger could even have been eliminated by displaying the goods which were for sale in some different way. But would it have been reasonable for an occupier embarking upon a garage sale to take any of these measures?
When that question is examined from the proper perspective, without knowing what in fact happened to the respondent, the answer is no. Any suburban house presents many features that can lead to injury. In that sense any suburban house presents many dangers. The appellant, as occupier, was not required to reduce or eliminate the danger presented by an unevenness in the driveway that was no larger than, and no different from, unevenness found in any but the most recently installed suburban concrete driveway. Nor was the occupier required to give some warning to entrants by telling them: ‘Be careful, the driveway upon which you are to walk is no different from most other driveways’. The fact that the appellant had invited the public to attend a garage sale, and displayed the goods for sale as she did, requires no different conclusion.[5]
[5]Neindorf (2005) 80 ALJR 341, 361 [92]–[96] (emphasis in original) (citations omitted).
To similar effect, Callinan and Heydon JJ emphasised the obvious and ordinary nature of the danger complained of:
The difference in height was clearly visible and obvious. The driveway was of a type no different from many concrete driveways on residential properties throughout South Australia. The differential in height could in no way be regarded as uncommon, or unexpected of a suburban residence in South Australia.[6]
[6]Ibid 362 [101].
Their Honours further adopted and endorsed the analysis of Doyle CJ at first instance including the following passage:
But there is a significant factor pointing the other way. The unevenness in the paving was of a kind and of an extent that pedestrians on roads and footpaths, and entrants on private property, encounter daily. Tree roots, erosion, soil movement and other factors all play a part in producing this state of affairs. In many residences a visitor will encounter the precise kind of hazard that the [respondent] encountered. A visitor is equally likely to encounter undulations in paving due to tree roots, pavers that have lifted or dropped slightly, cracking in concrete paving, erosion at the edge of hard paving such as Mrs Ghantous encountered.
Such hazards (it cannot be denied that they are hazards) are encountered daily by people entering private property. They are usually easily seen. Sometimes they are not. When encountered they usually do not cause injury, although clearly enough sometimes they do. They are accepted as an everyday aspect of life. This kind of unevenness in paving and paths is a normal hazard of daily life.
I consider that the law of negligence would depart from the concept of fault according to everyday standards, and from the concept of taking reasonable care for one’s neighbours, if it imposed a duty to protect entrants on private property against such a hazard.[7]
[7]Ibid 364 [111] (citations omitted).
Whilst it is obvious that Ms Savage suffered injury in a location fundamentally different from that of a suburban home, the judgments of the High Court articulate three fundamental principles upon which the applicant relies in the present case.
First, this case like Neindorf turns ultimately upon assessment of what it would have been reasonable and practical for the occupier to do prior to the incident in which Ms Savage suffered injury. Secondly, this inquiry is not to be undertaken with hindsight. Thirdly, as their Honours’ analysis demonstrates, the inquiry must be fact specific and the answer to it must turn on the total circumstances of this particular case.
It follows that the task for this Court on appeal involves a series of fact specific inquiries. The Court’s role in assessing the facts on appeal was summarised by the High Court in Robinson Helicopter Company Inc v McDermott:
A court of appeal conducting an appeal by way of rehearing is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’. In this case, they were not. The judge’s findings of fact accorded to the weight of lay and expert evidence and to the range of permissible inferences. The majority of the Court of Appeal should not have overturned them.[8]
[8](2016) 90 ALJR 679, 686–7 [43] (French CJ, Bell, Keane, Nettle and Gordon JJ) (citations omitted).
The facts
It is useful to summarise the evidence by reference to topics. This summary is based upon the summary of agreed facts filed in the appeal but makes further reference to some details of the documentary and oral evidence at trial.
The context and form of the crossover
The crossover formed part of a pedestrian connection between a major car park (containing some 500 spaces at groundlevel) and the arts/law precinct of the Monash campus at Clayton.
Pedestrians leaving the car park were funnelled by barrier fences onto a pedestrian crossing marked on the surface of a dual carriageway divided by a median strip. The two marked sections of pedestrian crossing on the carriageways were connected by a strip of footpath surfaced with Dromana toppings passing over the median strip within the roadway.
Surveys undertaken by Monash prior to the incident showed the crossover was used by approximately 5,000 – 6,000 pedestrians per day.
Ms Savage herself had used the crossing some 800 times and Mr Percy even more often.
The crossover was one of only three out of eleven crossovers across roadways at the university which were not sealed with a permanent all weather surface.
Mark Corea, the grounds supervisor employed by Monash, gave evidence that a permeable surface had been adopted on the crossover to assist the access of the root systems of nearby trees to rainwater. A Google map image tendered in evidence at the trial and showing the crossover as at January 2010 is attached as Appendix A to this judgment.
Mr Corea accepted in cross-examination that Monash had adopted concrete as the surface for pathways elsewhere in locations carrying high levels of pedestrian traffic.
The surface of Dromana toppings was susceptible to partial displacement due to wear and tear from foot traffic. In turn, this had the potential to create depressions or potholes within it. Moreover, and in particular, the surface was susceptible to indentation when wet.
Communications contained within the business records of Monash (to which I shall refer further below) showed that there was a history of incidents involving tripping or slipping as a result of irregularities in the surface.
The surface also permitted puddles to form within depressions in the event of rainfall. Once again, records of Monash indicated that this occurred recurrently.
Taken as a whole the evidence thus showed:
(18) The choice of Dromana toppings as a surface was deliberate;
(19) The toppings were potentially susceptible to displacement and the creation of depressions and potholes by reason of the passage of pedestrians over the surface;
(20) The location was one which Monash knew carried very high levels of pedestrian traffic;
(21) The location was one which Monash knew had been the site of previous tripping or slipping incidents as a result of the uneven surface;
(22) The location was one which Monash knew was susceptible to the creation of puddles within depressions following rainfall; and
(23) The surface was susceptible to indentation when wet.
The maintenance regime
Monash had entered into a contract with PMS in January 2009 pursuant to which PMS undertook inspection and maintenance duties within the outdoor grounds of the Clayton campus. Monash employed Mr Corea as a grounds supervisor and another staff member to manage the grounds.
PMS had some 15 staff employed at the Clayton campus to carry out maintenance.
The contract required PMS to inspect and maintain the external areas of the campus. It included a technical specification for the maintenance of roads, footpaths and pavements (‘the specification’).
The specification described the key maintenance issues as follows:
1.5.1The key maintenance issues for footpaths and pavements relate to safety appearance and longevity. Key issues includes (sic):
(a) Keeping pavements clean in high use areas;
(b)Ensuring pavement uniformity by minimising surface disturbances and to obtain surface properties matching the original surface when patching;
(c)Promptly undertaking minor repairs to enhance path longevity and user safety; and
(d) Maintaining continuous and safe access.
The specification further set out a scope of footpath and pavement maintenance:
1.6.1Inspect, repair (including repairs required following accidents, storm damage or vandalism) and maintain the surface of footpaths and paved areas to the condition rating specified for the asset. Maintain the surfaces of footpaths and paved areas in a functioning and safe condition within their design parameters.
Section 1.8.2 of the specification set out requirements for routine maintenance with respect to footpaths. The contract required the relevant crossover to be maintained to level 4 of service described as ‘comprehensive stewardship’. PMS was required to inspect and report weekly with respect to the condition of the footpath. One of the specified purposes of the inspection was to identify hazards. PMS was further required to report hazards and damaged surfaces, factors that may affect condition and pedestrian use, and to repair and correct immediately hazardous conditions and damaged surface.
The specification then contained further requirements relating to safety, and in particular, required that as part of routine maintenance PMS isolate, repair and report hazards immediately. More specifically, it required PMS to:
·Identify hazards to use such as slippery surfaces, trip hazards, flooded areas, subsidence, leaf litter build up and obstacles;
·Identify loose or damaged, surface materials, failed base, sub-base or sub-grades;
·Report defects or damage likely to affect safety (immediately);
·Prevent public access until repaired (immediately);
·Repair to make safe (immediately).
The specification then required PMS to make repairs on a continuous basis to make footpaths safe and obtain uniform and hazard free surfaces. And as a component of minor repairs to ensure that the footpath was fully functional and safe at all times by requiring PMS to repair or replace defective, damaged, loose surfaces, bases, sub-bases and sub-grades and match replacement finishes, materials and thicknesses to original specification.
Lastly, there was a further specific maintenance requirement relating to surfaces, including raked and level gravel surfaces. This required damaged surfaces to be repaired within one week.
PMS maintained a stockpile of Dromana toppings on the campus in order to enable ongoing surface repairs to be carried out on footpaths of the same type as the crossover in issue.
PMS also both carried out its own weekly inspection of footpaths including the crossover and participated in a weekly walk around with the grounds supervisor employed by Monash. This weekly schedule was responsive to the surface repair requirement contained in the specification.
The evidence further indicated that inspections were usually carried out on a Friday and that the incident occurred on a Thursday.
There is no dispute that regular maintenance was in fact carried out in response to the inspection process. There was further evidence that it had been the subject of maintenance since 2005 and Google map images of the crossover taken in December 2009 showed, according to Corea, that it was in better condition than images taken in 2007.
The maintenance contract formed the basis of the third party claim. Moreover, insofar as Ms Savage’s claim against Monash is concerned the evidence relating to maintenance demonstrated that the maintenance regime adopted by Monash:
(24) Expressly contemplated that the surface of footpaths within the campus might require regular maintenance;
(25) Utilised a weekly system of inspection and repairs to address the need to maintain the surface levels of paths such as the crossover on an ongoing basis; and
(26) Implicitly recognised by the provision and utilisation of a stockpile of Dromana toppings on the campus that footpaths of this type did need ongoing maintenance.
The happening of the incident
The trial judge summarised Ms Savage’s evidence as to the happening of the incident as follows:
The plaintiff’s evidence as to the circumstances in which he (sic) suffered injury was brief and in its totality may be summarised as follows:
(i)On the morning of 18 August 2010 the plaintiff had parked her car in a car park within the grounds of the Monash University Clayton campus for the purpose of making her way by foot to the building in which she was employed as a security control room operator. The path to be taken by the plaintiff involved one in respect of which she was very familiar, she having undertaken that journey daily for a number of years. It involved her crossing between two divided bitumen roads within the University campus, which in turn were separated by a wide median strip.
(ii)The pathway for pedestrians traversing the median strip consisted of a compacted loose type base surface of a granitic substance variously described in the evidence as ‘Lilydale topping’ or ‘Dromana topping’.
(iii)The plaintiff described the circumstances of her injury as follows:
•it had been raining the night before. The area of the median strip across which she was to walk was such that ‘I had to walk through puddles’ ‘...as I got to the middle gravel area my ankle rolled outwards. I stumbled. My colleague John on the other side, waited for me to get across the second part of the road any help me into the building’.[9]
[9]Savage v Monash University [2017] VCC 1774 [3] (‘Primary Reasons’).
Question: Why did your ankle roll?
Answer: There was puddles on the ground, I stepped into a puddle, not knowing that the ground was uneven underneath it and rolled my ankle.
Question: I should have asked you, you said that you stepped on a puddle and you did not realise that there was an uneven surface underneath?
Answer: I couldn’t see through the puddle, ...
(iv)At the time at which the plaintiff suffered her injury she was wearing steel capped work boots.
In cross examination on behalf of the defendant the plaintiff was asked whether she could have skirted the puddle and responded ’there was puddles all over the area. It is not like I would deliberately walk through a puddle if I could avoid a puddle.’
It was put to the plaintiff that areas of the path were worn. She agreed with that proposition. She was asked:
Question: I’m suggesting that if you wanted to skirt that worn area that is the direct line you could have done so
Answer: It is possible.
Question: But instead you went through that and you say there was some puddles there.
Answer: There were puddles on the path yes.
In cross examination on behalf of the third-party the plaintiff agreed that she had commenced working at the Monash University Campus in 2008 and that she had generally walked from the car park across the area in which she was injured twice a day.[10]
[10]Primary Reasons [3]–[6].
There was no suggestion that Ms Savage was untruthful in her evidence.
Ms Savage’s evidence showed that the incident occurred when she utilised a crossover which she was accustomed to use but was confronted by puddles across her path. She then stepped onto a concealed uneven and unstable surface beneath a puddle and rolled her ankle.
It was not put to Ms Savage that a person taking reasonable care for her safety would not have stepped in the puddle. Nor was it so submitted to the trial judge.
The response to the incident
Some hours following the incident on 18 March 2010 Ms Savage’s supervisor Garth Percy inspected the crossover. In evidence he described noticing ‘some very small puddles of water sitting in very shallow impressions’. He did not see any need to erect barricades or place hazard warning signs.
Mr Percy completed an incident report which stated the incident occurred at 7:45 am and was reported at 9:10 am. Under the heading ‘What happened?’ the report stated that Ms Savage ‘… was walking across the pedestrian crossing to security office and rolled her ankle in a small depression in the median strip’.
Under the heading ‘Unsafe conditions — list all the unsafe conditions that were identified’ Mr Percy stated:
Uneven ground in median strip of pedestrian crossing.
Within a box headed ‘Agreed corrective actions’ he wrote —
Monash Security Operations Manager and Grounds Department notified to repair and level the ground.
On the day of the incident Mr Percy sent an email to Mr Corea, the grounds supervisor employed by Monash. The email relevantly read:
This morning a staff member rolled/sprained her ankle while using the pedestrian crossing outside building 61. There a (sic) some small depressions/potholes on the strip which were the cause of the injury. I have had a look at the crossing and noted that this is the busiest crossing on campus but it isn’t sealed. I discussed this with Trevor Smith and we agreed that sealing this median strip would be practical as a lot of water sits on it when it rains which creates the holes.
Trevor Smith an employee of Monash wrote an email to another Monash employee on 6 September 2010, which relevantly stated:
Refer attached quotations from Mark Corea for sealing of the pedestrian walkway at Bldg 61.
Currently there is crushed granite in place which needs constant maintenance due to the volume of pedestrians that use this crossing each day. During my time, there is (sic) been a number of pedestrians that have either tripped or fallen because of ruts that have formed in the granite.[11]
Just recently, one of our guards (Sheila) tripped and twisted her ankle as she was using the crossing which resulted in a WorkCover claim and being off for two weeks. …
[11]In discussion with the bench senior counsel for Monash accepted that the word ‘ruts’ must be read broadly given that the crossing was used by their pedestrians and not by wheeled vehicles.
It was common ground that Mr Smith had suffered severe health problems and was unable to give oral evidence as a result. Mr Percy gave evidence that Smith had worked at Monash since about 2005.
Mr Corea gave evidence that he inspected the crossover on 18 or 19 August. At the time of the inspection there were no puddles. He noticed a ‘little bit of unevenness about the path in certain parts’. These were ‘very shallow … one, two centimetres sort of uneven’. Mr Corea did not arrange to barricade the area or call for emergency repairs or otherwise undertake immediate rectification. However, he subsequently decided that he would upgrade the crossover to concrete. He did so in response to Mr Smith’s suggestion that it tended to get wet. This was done within a few weeks of the incident at a cost of $2,575.
Taken as a whole this evidence demonstrated that:
·Mr Percy initially identified uneven ground within the crossover as unsafe;
·Mr Smith then agreed with Mr Percy that the crossover should be sealed because of recurrent problems with holes and the accumulation of water within them;
·Mr Corea agreed that the surface of the crossover should be sealed; and
·The crossover was then concreted at a cost of $2,575.
I interpolate that neither the observations of Mr Percy nor Mr Corea were contemporaneous with the incident. Given that the surface of the crossover was permeable, the description of the subsequent limited presence and absence of puddles should not be taken as involving any conflict with the evidence of Ms Savage.
Further, the observation of the extent of unevenness in the surface made by Mr Corea was likewise made subsequently to the incident, after the puddles on the crossover had drained, and on the evidence may have been made after 1,000 or 2,000 more pedestrians had traversed the crossover.
Further contextual evidence
Monash tendered a number of incident reports which were agreed to be all of its incident reports which could be located that related to slips, trips, falls, or other type of incident in any way related to gravel paths occurring at the various campuses at Monash.[12] They did not include any records of incidents at the crossover. It was also agreed that Monash did not have an incident report relating to the incident in which Ms Savage suffered injury at the crossover. Mr Corea gave evidence that he had never received a formal complaint or incident report regarding injury at the crossover. Mr Percy said he had not previously had any cause for concern about the safety of the crossover. Mr Percy had used the crossover on a daily basis throughout the period that he had worked at Monash since 2003.
[12]The term ‘gravel paths’ was here used to include paths surfaced with crushed rock toppings such as Dromana toppings.
The judge’s reasons
At the outset of his reasons the trial judge noted that the evidence as to the circumstances in which Ms Savage suffered injury was confined to that of Ms Savage herself. He then structured his judgment first by summarising the evidence as to liability and then by analysing the evidence under the following headings:
·Did the crossover present a danger to those persons using it
·Should the danger associated with the crossover have been abated by a reasonable occupier
·Analysis in accordance with the provisions of the Wrongs Act.
The judge’s summary of the relevant evidence was careful and comprehensive. His Honour summarised the evidence given by Ms Savage, the email evidence, the evidence of Mr Corea and the evidence of Mr Percy.
In the course of that summary, his Honour made a series of subsidiary findings of fact including a consideration of Mr Corea’s evidence that whilst a properly laid concrete path surface was safer for pedestrians than one comprising Dromana toppings, it was inferior in that it reduced the water available to plants within the median strip.[13] His Honour rejected the proposition that this consideration justified the use of a less safe surface having regard to:
(27) the large area of permeable surfaces available to the vegetation within the median strip; and
(28) the fact that the photographs of the vegetation on the crossover taken some years after the introduction of a concrete surface for the crossover did not appear to demonstrate any effect resulting from the change in the surface of the crossover.
[13]Primary Reasons [23]–[25].
This finding is not challenged on appeal.
The trial judge also set out in some detail the cross-examination of Mr Percy,[14] directed to Mr Percy’s oral evidence that, the crossover was potentially unsafe rather than in fact unsafe as he recorded in the incident report form he prepared for Ms Savage’s employer.
[14]Primary Reasons [30].
His Honour then analysed the question whether the crossover presented a danger to persons using it at the time of the incident. He first concluded that by reason of the location of Mr Percy’s workplace within an adjacent building, he was well placed to comment upon the effect of rain upon the surface of the crossover.[15]
[15]Primary Reasons [31].
His Honour was further satisfied that Mr Corea accepted Mr Percy’s assessment of the adequacy of the crossover surface shortly after the accident given:
•his immediate response to the email addressed to him by Mr Percy and his request for a quotation for the works to be undertaken, which was issued by him within 48 hours.
•his acknowledgement of that position in the course of cross examination.[16]
[16]Primary Reasons [32].
The trial judge then rejected Mr Percy’s oral evidence insofar as it sought to resile from the observations and assessment he made in the incident report.[17] His Honour was satisfied that as a matter of fact Mr Percy assessed the crossover as unsafe at the time of the incident and formed the view that this condition required rectification by surface repair or replacement. His Honour further gave reasons for preferring Mr Percy’s observations and assessment of the safety of the crossover to that of Mr Corea.[18]
[17]Primary Reasons [33]–[35].
[18]Primary Reasons [40]–[41].
In turn, the trial judge was satisfied that the crossover was unsafe at the time Ms Savage was injured and presented a risk that users of the crossover may lose their footing as they traversed it.
Lastly, in this context his Honour stated:
Whilst it is put on behalf of the defendant that ‘given the paucity of evidence, no inference can be drawn from the fact itself that the plaintiff rolled her ankle; without further explanation, this can give no guide to the nature of the supposed “hazard”’ given:
a. that the plaintiff suffered her injury in circumstances in which:
(i)there is no suggestion that she was hurrying; and
(ii)her footwear was such that it would have provided her with a solid foundation as she traversed the crossover; and
b.the history of previous incidents of trips and falls as persons traversed the crossover into which history the incident suffered by the plaintiff clearly falls;
I am satisfied that it was the unsafe condition of the crossover as identified by Mr Percy which caused the plaintiff to miss her footing and roll her ankle.[19]
[19]Primary Reasons [43].
The trial judge then turned to the question whether the danger associated with the crossover should have been abated by a reasonable occupier.
His Honour first referred to the contents of Mr Smith’s email of 6 September 2010 concerning prior incidents at the crossover. He then referred to Mr Corea’s evidence concerning inspections of the crossover and concluded:
In those circumstances having regard to the behaviour of the crossover in the wet as described by Mr Corea, had an inspection of the crossover been undertaken in the context of knowledge of the content of Mr Smith’s email of 6 September 2010, I am satisfied that is even more likely that Mr Corea would have authorised the installation of an all-weather surface for the crossover without any delay.[20]
[20]Primary Reasons [49].
After referring again to his reasons for rejecting Mr Corea’s evidence as to the desirability of preferring a permeable surface on the crossover, his Honour said:
It follows that I am satisfied that, had Mr Smith forwarded to Mr Corea an email in which he described his observations that a number of pedestrians had tripped or fallen because of ruts which had formed in the surface of the crossover, Mr Corea would have implemented steps to install an all-weather surface regardless of any failure on the part of Mr Corea to detect the presence of a hazard with the crossover.
I make that finding on the basis of my satisfaction that an occupier acting reasonably would have done so given:
a. the central location of the crossover;
b.the difficulties identified by Mr Corea in the course of his evidence to which persons employing the crossover were exposed whilst traversing it in the wet;[21]
[21]These difficulties related to inconvenience such as muddy shoes.
c.the volume of people who daily traversed the crossover (namely approximately 5000 per day) each of whom:
(i)in wet weather were exposed at a minimum to the inconvenience described by Mr Corea in his evidence; but
(ii)may equally have been exposed to the risk of losing their footing, tripping or falling and the possibility of sustaining the vast range of potential injury associated with an incident of that type;
d.the potential effect which an adverse weather event such as a significant thunderstorm may have upon the loose surface of the crossover by exposing it to a large quantities of water and the potential of immediate degradation by reason of the presence of such water ;
e.the modest cost involved in replacing the crossover with an all-weather surface;
f.the activity undertaken by the defendant to install a concrete surface in the crossover, which activity was initiated no later than 48 hours after Mr Corea examined the crossover following the plaintiffs injury notwithstanding the fact that his examination failed to raise any concern in Mr Corea as to the lack of safety of the crossover.[22]
[22]Primary Reasons [52]–[53] (citation in original).
In my opinion, these findings accord squarely with the probabilities. But they are no more than intermediate findings of fact which are not determinative of the scope of the relevant duty of care.
His Honour then turned to the fundamental submission made on behalf of Monash that the degree of unevenness in the surface of the crossover which was established by the evidence, was not such as to be more than would be encountered and accepted as being reasonable in the course of everyday life. His Honour rejected this submission as overly simplistic in the circumstances of the present case for the following reasons:
When account is taken of:
(i)the well-known extremely high usage of a designated path consisting of a surface which was prone to degradation not only by reason of the number of people using the path but also the weather conditions;
(ii)the knowledge of the defendant of the history of incidents of tripping and falling prior to the plaintiffs injury caused by the nature of the surface of the crossover;
(iii)the potential for the uneven nature of the surface to be masked by reason of the combination of the presence of water and the porous nature of the surface of the crossover;
(iv)the presence of puddles as described by the plaintiff, namely:
‘all over the area. It is not like I would deliberately walk through a puddle if I could avoid a puddle’.
it follows that the defendant chose to ignore the potential danger to pedestrians arising by reason of the uneven and potentially unstable surface in which the effect of the porous and wet nature of the surface was to mask the presence of that danger to which users of the crossover were exposed.
For these reasons I am satisfied that:
(i)a reasonable occupier would not have considered a granitic surface to be suitable or safe and would have installed an all-weather crossover of either bitumen or concrete; and
(ii)it is probable that Mr Corea, had he possessed the information known to Mr Smith, would have acted in the way in which he did in this instance, namely to authorise the relatively small expenditure required to install an all-weather crossover with a bitumen or concrete surface.[23]
[23]Primary Reasons [56]–[57].
I respectfully agree with this analysis.
The trial judge then turned to the provisions of the Wrongs Act 1958. His Honour assessed the gravity and likelihood of probable injury in the following terms:
There can be no issue that a vast number of people made use of a designated pathway created specifically to facilitate their safe access across two roadways on a daily basis.
Given the nature of the surface of the crossover, I am satisfied that its users were exposed to a potential of risk of injury arising by reason of:
•deterioration in the surface of the crossover merely by reason of the extreme levels of pedestrian traffic which it carried; and/or
•deterioration in the surface of the crossover when it was wet. In particular it is in my opinion trite that the exposure of the crossover to significant quantities of water being deposited in the course of an extreme weather event such as a thunderstorm must have carried the possibility that a significant degradation of the soft fill surface might occur in circumstances in which persons using the crossover may be running to escape the rain.
Weight, of course, should be given to the fact that the incidence of reported injury associated with the crossover was extremely low given the large numbers of persons using the crossover.
It is clear that the relationship between the incidence of injury and the use of the crossover was extremely low having regard to the numbers of persons who access the crossover. I am satisfied however that those figures must be approached with a modest degree of caution to take account of the fact that:
(i)many incidents of tripping or slipping which did not occasion injury may not be reported; and
(ii)the crossover was most probably safe when it was dry and was rendered potentially unsafe by reason of the presence of water or water damage.
Equally weight should be accorded to the potential for significant injury in the form of fracture of wrists or other bones in association with unguarded falls, in the context of the fact that the defendant was on notice that pedestrians had either tripped or fallen because of ruts which had formed in the surface of the crossover, the surface of which was such that require was such that it required the service of which was such that … it required:
• constant maintenance on the opinion of Mr Smith; or
• regular maintenance in the opinion of Mr Corea
due to the volume of pedestrians making use of the crossover.[24]
[24]Primary Reasons [62]–[66].
His Honour then addressed the circumstances of entry onto the premises, the nature of the premises, and the knowledge which the occupier had of the likelihood of persons being upon the premises.
There can be no issue that thousands of people each day were invited to use the crossover by the fact that:
(i)the defendant conducted a tertiary learning institution and established a car park for those users; and
(ii)the defendant created a designated pedestrian crossover between the two bitumen surfaces and effectively directed persons making their way to and from its car park to make use of the crossover.[25]
[25]Primary Reasons [67].
Turning to the age of the person entering the premises and the ability of the person entering the premises to appreciate the danger his Honour said:
Clearly the majority of persons making use of the property was such that they were of an age which enabled them to appreciate dangers which might be present when negotiating footpaths.
The danger in question, namely the presence of an unexpected alteration in the surface in the form of an undulation, which although minor in nature may nonetheless cause a loss of footing, was hidden by the effect of the water on the porous nature of the surface of the crossover.
There was no suggestion in cross examination of the plaintiff that she should have been aware of the presence of the depression or that she should have guarded against it.
While it was put to the plaintiff that she could have avoided the puddle created by the depression it was not suggested to her that she acted unreasonably in failing to do so.
For these reasons I am satisfied that I should take the view that the danger was one which was hidden and of a type which might escape the attention of persons using the crossover by reason of mere inadvertence on their part.[26]
[26]Primary Reasons [68]–[72].
Lastly, his Honour addressed the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person:
My earlier findings and analysis deal definitively with this issue.
It was Mr Corea’s evidence that the costs associated with creating a concrete surface were of no real significance.
The fact that the works were in fact undertaken within a short period of time of the plaintiffs injury demonstrates the relative absence of any burden upon the occupier in eliminating the danger associated with tripping hazards arising by reason of the degradation of the surface of the crossover.[27]
[27]Primary Reasons [73]–[75].
Having undertaken this assessment, his Honour then expressed the conclusion that he was satisfied Ms Savage had established the liability of Monash by reason of its failure to take such care as was in all the circumstances reasonable to see that Ms Savage would not be injured by reason of the state of the crossover or things done or omitted to be done in relation to the state of the crossover.
The scope of the duty owed by Monash
In the course of its written case in respect of the initial proposed grounds of appeal, Monash submits:
This surface, then, was absolutely typical of the kinds of gravel path regularly encountered in daily life. It had no unusual hazards. In Neindorf v Junkovic Hayne J noted that an occupier –
… was not required to reduce or eliminate the danger presented by an unevenness in the driveway that was no larger than, and no different from, unevenness found in any but the most recently installed suburban concrete driveway’.
Obviously, Monash is a far larger area than the normal suburban house, and this is a factor to be taken into account in assessing how much Monash could reasonably be expected to do to reduce such unevenness, but it is submitted that these comments are extremely apposite to the present case.
As I have noted, a submission to this effect was also made to the trial judge and specifically addressed by him in his Primary Reasons.
On one view, neither the proposed grounds of appeal nor the written case filed on behalf of Monash satisfactorily address the sequential nature of his Honour’s Primary Reasons, and in particular, the distinction he drew between the causation issue and the question whether Monash owed a duty to take reasonable care to avoid injury to Ms Savage and other users of the crossover by reason of its state. The submission I have set out above goes to the scope of the duty of care owed by Monash. In fairness to Monash because it was central to Monash’s case at first instance and to the oral elaboration of the application for leave to appeal, it is desirable to deal with it as a central contention before turning to the specific grounds of appeal.
I would reject the submission that this was a case involving a hazard of the type considered and identified in Neindorf for three reasons.
First, the present case was not relevantly similar to that of Neindorf. In contrast to that case:
(29) It concerned a heavily trafficked pedestrian pathway at a major activity centre;
(30) The surface feature which caused Ms Savage to be injured was not obvious but was concealed in the puddle;
(31) The surface feature which caused Ms Savage to be injured was not permanent but the product of an occasional occurrence resulting from a combination of circumstances creating a different situation from that which Ms Savage ordinarily encountered;
(32) The surface had a history of recurrent deterioration resulting in the creation of depressions and potholes;
(33) The surface had a history of the consequent creation of puddles upon it following rainfall;
(34) The surface had a history of causing trips and falls;
(35) These matters of history were known to employees of Monash; and
(36) The cost of removal of the hazard was minimal having regard to the resources of Monash and it might be added involved none of the resource allocation issues which may affect a highway authority.
Secondly, the trial judge specifically rejected the submission made on behalf of Monash that the degree of unevenness in the surface of the crossover which was established by the evidence, was not such as to be more than would be encountered and accepted as being reasonable in the course of everyday life, and did not give rise to a relevant duty of care. The submissions of Monash on appeal do not respond directly to his Honour’s reasoning at [52]–[53] of his Primary Reasons which are set out at [82] of this judgment. No error has been identified with that chain of reasoning. Further, the findings of fact underpinning this reasoning were not contrary to incontrovertible facts or uncontested testimony, glaringly improbable, or contrary to compelling inferences.
Thirdly, having reviewed the evidence as a whole I am myself satisfied that the hazard which Ms Savage encountered had the following characteristics:
(37) The hazard was occasional in the sense that it was not normally encountered in the course of daily usage of the crossover, but only when the combination of the surface utilised, the pedestrian traffic passing over it, the last time of maintenance and the occurrence of rainfall produced conditions of the type Ms Savage encountered;
(38) It was not obvious but was concealed in that the muddy water within the puddle concealed the uneven surface on which Ms Savage rolled her ankle;
(39) It was of a kind which Monash knew or ought to have known might occur having regard to the type of surface utilised, the maintenance regime adopted, the high level of pedestrian traffic, a history of the occasional production of depressions, potholes and puddles within the crossover surface and a further history of tripping and falling incidents upon it;
(40) It was a hazard which would result in large numbers of pedestrians being exposed to the potential risk of injury; and
(41) It was of a kind readily prevented by a sealing of the crossover at low cost.
In all the circumstances, Monash owed Ms Savage a duty of care which extended to prevention of hazards of the type which caused her to be injured.
Proposed grounds 1, 2 and 3 of appeal — did the trial judge err in finding that at the time of the incident the crossover was unsafe?
The written case filed on behalf of Monash makes clear[28] that proposed grounds 1, 2 and 3 of appeal (to which I shall shortly come individually) are concerned with the finding of the trial judge at [42] of his Primary Reasons that at the time of the incident the crossover was unsafe. This finding was one of preliminary fact as to the existence of a hazard which caused Ms Savage to be injured. It was not a finding as to whether the crossover constituted a danger or hazard of the kind which Monash should reasonably have prevented occurring. That question was addressed in subsequent sections of the trial judge’s primary judgment. Insofar as the threshold question of whether the condition of the crossover constituted a hazard which caused Ms Savage to suffer injury is concerned, the evidence made clear that it did. Ms Savage’s evidence as to the happening of the incident and the evidence of Mr Percy’s observations on the day of the incident as to the safety of the surface when viewed in the context of the circumstantial evidence as a whole, established on the balance of probabilities that the uneven surface of the crossover concealed within the puddle, did in fact constitute a hazard.
[28]Written Case [12].
Monash submits that all that could be said about the condition of the crossover at the time of the incident was that it had some gradual depressions of approximately one to two centimetres in depth and that there was some unspecified unevenness in the ground surface of the puddle in which the incident occurred. This entirely overlooks the contextual evidence as to the nature of the surface, its ongoing requirement for maintenance, the email evidence demonstrating a history of the formation of holes and puddles within it, and the history of tripping and falling incidents on it.
Moreover, the case for Ms Savage did not turn upon the dimensions of a fixed lip or protrusion in a footpath but on the presence of unevenness causing instability in the base of a puddle concealed from view by muddy water. It was in this sense a case about a trap or hidden hazard.[29] The weight of the evidence overwhelmingly established that Ms Savage suffered injury because of a hazard of this type. Indeed, the very fact that she was ordinarily able to utilise the crossover without difficulty, and had done so some 800 times, highlights the fact that on this occasion she encountered a hazard which caused her to roll her ankle when she crossed it wearing boots and in the way that she described.[30] I turn then to the specific grounds of appeal relating to causation.
Ground 1 — the learned trial judge erred in that, when considering whether Monash had breached its duty as occupier, he assessed the cause of Ms Savage’s injury in hindsight and with imprecision, rather than determining what the condition of the crossover was at the time and location of the incident and assessing whether, from such condition, a breach of the Monash’s duty was established
[29]See Brodie v Singleton (2001) 206 CLR 512, 581 [163] (Gaudron, McHugh and Gummow JJ).
[30]See the trial judge’s conclusions at [43] of his Primary Reasons which are set out at [79] of this judgment above.
The learned trial judge was entitled to utilise hindsight in determining whether the condition of the crossover constituted a hazard which caused the injury suffered by Ms Savage. As Hayne J said in Vairy v Wyong Shire Council:
The inquiry into the causes of an accident is wholly retrospective. It seeks to identify what happened and why. The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk.[31]
[31](2005) 223 CLR 422, 461 [124].
I have explained above why I reject the contention that the trial judge erred in finding that the crossover was unsafe. The case for Ms Savage as to causation did not depend upon establishing the precise dimensions of an element of the hazard but upon establishing that on the evidence as a whole the uneven surface within the puddle constituted a hazard.
Proposed ground 2 — the learned trial judge erred in relying upon the opinion of Mr Percy, a security guard, expressed in an incident report completed on the day of the incident that the crossover was unsafe in circumstances where —
(a)Mr Percy was not aware of the precise location at which Ms Savage had rolled her ankle;
(b)Mr Percy had traversed the crossover thousands of times prior to the incident and had not identified any hazardous or unsafe condition;
(c)Mr Percy was inspecting and assessing the crossover in hindsight after the incident occurred;
(d)Mr Percy did not identify any particular feature of the crossover which had caused Ms Savage to roll her ankle;
(e)There was no evidence or suggestion that Mr Percy had any qualifications in occupational health and safety or grounds maintenance.
The trial judge was entitled to have regard to the observations of Mr Percy. As Callinan J observed in Brodie v Singleton,[32] a Court is not bound to accept that a matter of ordinary observation such as the readily apparent state of a footpath is a matter calling for expert opinion.
[32](2001) 206 CLR 512, 639 [355].
Mr Percy’s observations of the safety of the crossover were grounded in his day to day knowledge of it and the conditions that he inspected on the day of the incident.
Further, as his Honour found, the evidence as a whole demonstrates that Mr Percy’s opinion as to the safety of the crossover was accepted by Mr Smith.
Moreover and more fundamentally the evidence of Ms Savage considered in the light of the circumstantial evidence as a whole as to the nature and history of the crossover compelled the conclusion that the incident occurred as a result of the hazardous surface of the crossover without any regard to the opinion of Mr Percy as to its safety.
Proposed ground 3 — the learned trial judge erred in failing to consider the uncontradicted and unchallenged evidence of Mr Corea (which was consistent with the viva voce evidence of Mr Percy) that, shortly after the incident, he inspected the crossover and found only gradual depressions of one to two centimetres in depth which he described as ‘a little bit of unevenness’
The learned trial judge did consider the evidence of Mr Corea. Indeed he summarised it in substantial detail. He preferred Mr Percy’s view as to the safety of the crossover to that of Mr Corea for the reasons elaborated at [40] and [41] of his Primary Reasons. Most significant of these was the fact that Mr Corea did not see the crossover when it was affected by water.
Proposed ground 4 — the learned trial judge erred in finding that there was a hidden danger in the crossover, when —
(a)Ms Savage was well aware of the existence of a depression, that is, the puddle into which she stepped; and
(b)There was no sufficient evidence of any other feature of the crossover which could reasonably be said to constitute a ‘danger’
There is nothing in this ground. The uneven surface which caused Ms Savage to roll her ankle was as a matter of fact concealed by water in the puddle and as a matter of fact unusual in the sense that hazards of the type which it represented arose only occasionally. These facts gave rise to a hidden danger.
Proposed grounds 5, 6 and 7 —
5the learned trial judge erred in failing to assess the contents of the Smith email (forming part of Exhibit B) in the context of –
(a)the total approximate number of users of the crossover;
(b)the fact that the history of incidents was, in comparison with the usage of the crossover, extremely low;
(c)the fact that Mr Percy had not previously identified any issue with the crossover;
(d)the fact that Ms Savage gave no evidence of previous concerns about the crossover;
(e)the fact that there were no documented incidents of injury occurring at the crossover;
(f)the fact that the surface of the crossover had, over the period of Mr Smith’s observation, undergone maintenance and had improved.
6the learned trial judge erred in finding that the crossover presented a hazard by reason of its vulnerability to deterioration and its need for maintenance, when there was no sufficient or useful evidence of it being in a state which constituted a hazard at the time of the incident.
7the learned trial judge erred in failing to distinguish between the question of whether it would have been appropriate or preferable to install an “all-weather surface” (i.e. a bitumen or concrete surface) and the question of whether the failure to install such a surface constituted a breach of Monash’s duty as occupier.
The written case filed on behalf of Monash indicates that these grounds are directed to the finding that a reasonable occupier would not have considered the ground surface to be suitable or safe and would have installed an all-weather crossover surface of either bitumen or concrete prior to the incident.
The trial judge adverted to each of the specific matters referred to in ground 5.
It is necessary to say something further about only two of them. First, the fact that the history of incidents was low in comparison with the usage of the crossover does not materially assist Monash. Rather, the high level of usage of the crossover increased the risk that the recurrent occurrence of hazards at the crossover would cause injury. Secondly, insofar as the absence of documented incidents of injury occurring at the crossover is concerned, this is of doubtful significance, given that no incident report kept by Monash was produced relating to the injury to Ms Savage.
Further and in any event, the email evidence relating to the history of the crossover, together with the circumstantial evidence as a whole, supported the conclusion that the crossover was recurrently subject to the occasional development of depressions and puddles. There was no error by the trial judge in approaching this issue by reference to the evidence as a whole.
It is submitted by Monash that the trial judge did not properly assess whether it was prospectively reasonable to seal the crossover in order to prevent and avoid the risk of incidents of the type which caused injury to Ms Savage.
Neither the Primary Reasons of the judge read as a whole, nor in particular his conclusion at [56] of those reasons set out above at [84] of this judgment, support this criticism.
There is nothing in proposed grounds 5, 6 and 7.
The trial judge was correct to conclude on the evidence as a whole that a reasonable occupier would have upgraded the surface of the crossover to an all-weather surface prior to the incident. Having regard to the manner in which the incident occurred this would have prevented the injury to Ms Savage.
The third party proceeding
The case put by Ms Savage against Monash was one which focused upon the composition of the surface of the crossover. It did not involve an allegation that Monash failed to take reasonable care in its maintenance.
Monash however alleged as against PMS that insofar as the incident was caused by a hazard (which Monash denied) that hazard was caused by PMS in dereliction of its maintenance obligations.
The trial judge gave a separate judgment with respect to the third party claim. In that judgment he referred to the key provisions of the maintenance contract which I have summarised above. He also referred to the evidence as to the manner in which PMS performed its maintenance obligations, including maintaining a stockpile of Dromana toppings on site, the performance of weekly inspections and the furnishing of regular reports. The evidence included the following statements by Mr Corea.
Q:The crossing, as you already said, was treated as an R4 area, and that basically involved weekly inspections of the area, and any necessary maintenance following from those inspections being attended to?
A: Correct.
Q:And the sort of maintenance that might be required would include picking up any litter?
A: Yes.
Q: From garden beds and the like?
A: Yep.
Q: Sweeping and blowing?
A: Correct.
Q: Carrying out any small surface repairs if they were required?
A: Yeah, that's right.
Q: You know, topping them up with a bit of gravel and the like?
A: Yes.
Q:But it certainly didn't include carrying out major refurbishment works?
A:Yes. It did not include, yeah. But, certainly any hazards that they noticed, you know, they would bring to our attention.
Q: Yes, and then you’d make a decision what to do about it?
A: Correct.
The trial judge characterised the duty of care owed by PMS to Monash as a duty to act reasonably to give effect to the intention of the parties as evidenced by the contract.[33]
[33]Savage v Monash [2017] VCC 1886 [5] (‘Third Party Reasons’).
His Honour said further:
… the execution of that duty must be considered in the context of the decision by the defendant to have in place a surface in an extremely high pedestrian traffic area, the nature of which:
• required maintenance due to its tendency to deteriorate;
•possessed a tendency in wet weather to accumulate water which would remain on the surface until it was absorbed through permeation, such that pedestrians using the crossover in wet weather were likely to be subjected to the danger encountered by the plaintiff; and
•possessed a history of occasioning injury by reason of the tendency of the surface to degrade;
and that the obligation of the third-party was limited to the maintenance of a surface which the defendant considered to be appropriate in all the circumstances.[34]
[34]Ibid.
His Honour then noted that although it might be inferred that PMS became aware prior to the incident that the surface of the crossover required maintenance due to its tendency to deteriorate, and possessed a tendency in wet weather to accumulate water such that pedestrians using the crossover in wet weather were likely to be subjected to dangers of the kind encountered by Ms Savage; there was no evidence that PMS was ever appraised of a history of any prior safety issue at the crossover.[35]
[35]Third Party Reasons [7], [8].
His Honour next observed:
No evidence was adduced as to:
a.when last prior to the plaintiff’s injury the most recent inspection by the third-party of the crossover took place;
b.when last prior to the plaintiff’s injury maintenance works were carried out by the third-party upon the crossover; or
c.the weather patterns and level of rainfall during the period between whatever time the third-party inspected the crossover before the plaintiff suffered injury and the time at which the injury was occasioned.[36]
[36]Third Party Reasons [9].
The trial judge then noted that the ability of the surface to disperse by permeation water which accumulated upon it gave rise to the possibility that observations of it at different points in time (as occurred with Mr Percy and Mr Corea) might give rise to different conclusions as to its safety.[37]
[37]Third Party Reasons [10].
The trial judge concluded that there was no probative evidence which enabled the conclusion that PMS was aware of the combination of factors which gave rise to the danger to Ms Savage. In particular, there was no evidence as to whether PMS:
(i)during the period between the commencement of the contract in January 2009 and the plaintiff’s injury in August 2010 had ever inspected the crossover when water was lying on it;
(ii)was aware or should have been aware of the danger which arose as presented to pedestrians employing the crossover when water had accumulated on the surface of the crossover;
(iii)was aware or should have been aware that depressions in the surface of the crossover which appeared not to be unsafe or to be reasonable when the crossover was dry might in fact become unsafe or dangerous when their presence was masked by water;
(iv)had ever been called on to repair or maintain the crossover to address problems with the surface of the crossover in the context of the awareness of the danger identified by Mr Smith;
(v)had ever perceived, or for that matter unreasonably failed to perceive, the potential for danger associated with the crossover or had failed to notify the defendant of the existence of such a potential;
(vi)was ever aware that the tendency of the surface to degrade with usage or weather, or that such degradation had occasioned or was likely to occasion the potential of injury to persons using the crossover; or
(vii)was aware of the vast numbers of people who made use of the crossover on a daily basis.[38]
[38]Third Party Reasons [12].
His Honour then concluded:
Given the absence of any probative evidence as to any particular failure by the third-party to act reasonably to give effect to the intention of the parties under the contract, for the reasons which I have set out above and particularly taking into account:
(i)the apparent safety of the crossover had an inspection been undertaken within the week preceding the date upon which the plaintiff suffered injury in circumstances in which water was not lying on the surface of the crossover; and
(ii)the potential for that situation to change so that a danger arose but was maintained only for the period which it took for the water to permeate the crossing;
I am not satisfied that the evidence establishes that the third-party at any time failed in some way to do what was reasonably expected of in undertaking its duty to maintain the crossover, and in particular that its failure to identify and eliminate the risk which caused the plaintiff’s injury, involved a breach of the duty of care which the third-party owed to the defendant.[39]
[39]Third Party Reasons [13].
The proposed grounds of appeal assert that elements of the trial judge’s findings of fact compelled the conclusion that PMS had breached its duty of care. Proposed grounds 8 and 9 of appeal are as follows:
Proposed ground 8 — the learned trial judge erred in that, having found that the crossover presented a hazard by reason of its very nature and vulnerability, as evidenced by hazards which had arisen in the crossover from time to time, he held there was no breach by PMS of its duty to inspect and maintain the crossover, and notify Monash of hazards, such as to give rise to liability on the part of the PMS to Ms Savage
Proposed ground 9 —having found that the crossover was unsafe and/or created a hazard, the learned trial judge erred in failing to find that PMS was in breach of its duty to inspect and maintain the crossover, and notify the applicant of hazards, in accordance with its contractual obligations and thus had incurred liability to Ms Savage in respect of her injuries
Monash submits that it is implicit in the trial judge’s findings as to the characteristics of the surface of the crossover, that PMS ought to have observed, reported and/or rectified the dangers created by the surface of the crossover particularly after rainfall.
The trial judge specifically found, however, that there was no evidence PMS was aware of any history of safety issues at the crossover by reason of hazards that arose due to the deterioration of the surface from time to time. Accordingly, it was not in an equivalent position to Monash in this regard.
This said there is no doubt PMS owed a duty of care to Monash to take reasonable care to repair recurrent deterioration of the crossover surface and to identify and rectify hazards such as the puddle in which Ms Savage injured herself. The critical question was whether PMS breached that duty.
The simple occurrence of the hazard at 7:45 am on a working day did not establish a breach.
It was not established that PMS had failed to identify and rectify that hazard or hazards of that type when it should have. To the contrary, there was no evidence that PMS had done other than dutifully implement the weekly maintenance inspection regime and recurrent maintenance regime contemplated by the contract and accepted as reasonable on an ongoing basis by Monash. Critically, there was no evidence as to when puddles first appeared upon the crossover prior to the incident. In these circumstances Monash could not establish that PMS ought reasonably to have identified and repaired the surface prior to the incident.
Monash relied on eight matters in this regard:
(42) PMS commenced its maintenance work in January 2009;
(43) By the date of the incident PMS had undertaken maintenance for some 19 months;
(44) PMS employed 15 staff to work at the Monash Clayton campus;
(45) The contract required weekly inspections by PMS;
(46) In addition the maintenance supervisor employed by PMS went on a weekly walk around with Mr Corea and inspected paths and median strips in the course of this;
(47) More than 80 weekly inspections of the crossover were undertaken prior to the incident;
(48) It may be inferred that it rained from time to time during the 19 month period in issue;
(49) Rainfall records from a meteorological station in Oakleigh, confirmed it rained in this sector of the metropolitan area during the 19 month period.
Relying on these matters Monash submitted that it can be inferred PMS must have observed the crossover in a rain affected state at some point during the performance of the contract. In turn Monash submitted that PMS must have been aware that the crossover presented a potential hazard after rain.
I do not accept that the matters relied on establish the second inference. But even if these submissions be accepted, they do not establish PMS failed to take reasonable care to make observations of and rectify the defective surface prior to the incident.
The evidence did not establish when and how the hazard emerged. The fact that PMS ought reasonably to have been aware that the surface was susceptible to deterioration and the development of hazards, does not establish that it failed to exercise reasonable care on this occasion.
This was not a case where there was no system of periodic inspection and maintenance.[40]
[40]Cf. Strong v Woolworths Limited (2012) 246 CLR 182, 196 [32] (French CJ, Gummow, Crennan and Bell JJ).
It was necessary for Monash to show either that the maintenance system adopted was not reasonably adequate having regard to the intention of the parties as reflected in the contract, or that a hazard emerged to which PMS failed to respond in a reasonably timely manner.
In the event, Monash failed to make out either alternative on the evidence.
Conclusion
For the above reasons leave to appeal should be refused both with respect to the primary judgment and the third party judgment.
PRIEST JA:
I agree with Osborn JA.
NIALL JA:
I agree with Osborn JA.
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